Documente Academic
Documente Profesional
Documente Cultură
This matter is before the Court on Plaintiffs’1 Motion for Temporary Restraining
Order and/or Preliminary Injunction (Doc. No. 16). Defendants2 have filed a Response
(Doc. No. 54). In addition, an Amicus Brief (Doc. No. 59) has been filed in support of the
State of Oklahoma by a group of sixteen states. The Court has considered the affidavits
and documentary evidence submitted with the Motion and the Response. Further, the Court
1
Plaintiffs are: South Wind Women’s Center LLC, d/b/a Trust Women Oklahoma City, on
behalf of itself, its physicians and staff, and its patients; Larry A. Burns, DO, on behalf of
himself, his staff, and his patients; and Comprehensive Health of Planned Parenthood Great
Plains, Inc., on behalf of itself, its physicians and staff, and its patients. The Supreme Court
has held that abortion providers have standing to raise constitutional challenges on behalf
of their patients. See, e.g., Singleton v. Wulff, 428 U.S. 106, 118 (1976) (plurality op.).
2
Defendants are: J. Kevin Stitt in his official capacity as Governor of Oklahoma; Michael
Hunter in his official capacity as Attorney General of Oklahoma; David Prater in his
official capacity as District Attorney for Oklahoma County; Greg Mashburn in his official
capacity as District Attorney for Cleveland County; Gary Cox in his official capacity as
Oklahoma Commissioner of Health; and Mark Gower in his official capacity as Director
of the Oklahoma Department of Emergency Management.
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 2 of 14
held a telephonic hearing on April 3, 2020, with counsel for both parties and for the
This case raises an issue that has long been a source of struggle for the courts: the
proper use of the judicial power in reviewing laws and executive orders or actions taken in
response to a public health emergency. There is no dispute that the State of Oklahoma—
like governments across the globe—is facing a health crisis in the COVID-19 pandemic
that requires, and will continue for an indeterminate time to require, emergency measures.
In this effort to secure the health and safety of the public, the State has broad power to act
and even, temporarily, impose requirements that intrude upon the liberty of its citizens.
“[T]he rights of the individual in respect of his liberty may at times, under the pressure of
the safety of the general public may demand.” Jacobson v. Massachusetts, 197 U.S. 11,
29 (1905). That power is not unfettered, however, and courts should carefully guard
against “unreasonable,” “arbitrary,” or “oppressive” exercises of it. Id. at 27, 38; see also
id. at 31 (explaining that police power is improperly used when “the means prescribed by
the state . . . has no real or substantial relation to the protection of the public health and the
public safety”). In doing so, a court should not merely substitute its opinion for that of the
officers tasked with responding to the emergency, see id. at 26, 30, but neither should the
The right at issue here is access to abortion. Again, the parties do not dispute—for
purposes of this action, at least—that the Fourteenth Amendment to the United States
Constitution shields a woman’s right of access to abortion, prior to viability of the fetus,
2
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 3 of 14
from any “undue burden” caused by state regulation. See Whole Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292, 2310 (2016) (“[T]he standard that this Court laid out in
[Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (plurality op.),] . . . asks
applying Casey’s undue burden rule, courts must “consider the burdens a law imposes on
abortion access together with the benefits those laws confer.” Id. at 2309. Plaintiffs
contend that executive orders issued by the Governor of Oklahoma impose a complete ban
Amendment’s guarantees of due process and equal protection. See Compl. ¶¶ 65-70 (Doc.
No. 1).
As set forth below, the Court concludes that while the current public health
emergency allows the State of Oklahoma to impose some of the cited measures delaying
effectively deny a right of access to abortion. Further, the Court concludes that the benefit
to public health of the ban on medication abortions is minor and outweighed by the
I.
Upon careful consideration of the evidence and argument submitted by the parties,
declaring that as part of the State of Oklahoma’s “measures to protect all Oklahomans
3
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 4 of 14
and medical providers in Oklahoma shall postpone all elective surgeries, minor medical
procedures, and non-emergency dental procedures until April 7, 2020.” Compl. ¶¶ 1-2; id.
Ex. 1, Fourth Am. Exec. Order ¶ 18 (No. 2020-07 (Doc. No. 1-1)).
2. Generally, the Executive Order does not specify which surgeries and
procedures fall within Paragraph 18’s prohibition against elective surgeries and minor
medical procedures or prescribe how that determination is to be made. See Fourth Am.
Exec. Order ¶ 18. The Court must presume that those classifications are being decided on
Governor on March 27, 2020, stated in a Press Release that the postponement referenced
in the Executive Order applies to “any type of abortion services as defined in 63 O.S. § 1-
otherwise necessary to prevent serious health risks to the unborn child’s mother.” Id. Ex.
extending the postponement of elective surgeries and minor medical procedures “until
April 30, 2020.” Pls.’ Notice Ex. 1, Seventh Am. Exec. Order ¶ 18 (Doc. No. 38-1). The
3
Title 63, section 1-738.1A(5) of the Oklahoma Statutes provides that a “medical
emergency” “means the existence of any physical condition, not including any emotional,
psychological, or mental condition, which a reasonably prudent physician, with knowledge
of the case and treatment possibilities with respect to the medical conditions involved,
would determine necessitates the immediate abortion of the pregnancy of the female to
avert her death or to avert substantial and irreversible impairment of a major bodily
function arising from continued pregnancy.”
4
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 5 of 14
April 1, 2020 amendment also declared a state of emergency in all 77 counties in Oklahoma
“caused by the impending threat of COVID-19 to the people of this State and the public’s
postfertilization age of the woman’s unborn child is twenty (20) or more weeks.” Okla.
10 or 11 weeks from the pregnant person’s last menstrual period (i.e., eight or nine weeks
abortion) up to 21.6 weeks from the last menstrual period (i.e., 19.6 weeks
postfertilization). See Pls.’ Mot. at 13-15; id. Ex. 5, Burns Decl. ¶ 11 (Doc. No. 16-5); id.
Ex. 6, Burkhart Decl. ¶ 2 (Doc. No. 16-6); id. Ex. 7, Hill Decl. ¶ 8 (Doc. No. 16-7).
6. The effect of the Executive Order and Press Release is to prevent abortion
“to avert [the pregnant person’s] death or to avert substantial and irreversible impairment
of a major bodily function [of the pregnant person] arising from continued pregnancy” or
to “otherwise . . . prevent serious health risks to” the pregnant person, Okla. Stat. tit. 63, §
1-738.1A; Press Release at 1—until April 30, 2020. Defendants acknowledge that this
prohibition may be extended beyond that date due to the ongoing severity of the COVID-
19 pandemic.
5
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 6 of 14
7. The stated purpose and benefit of the Executive Order and Press Release—
and specifically the requirement in Paragraph 18 of the Executive Order that “Oklahomans
and medical providers in Oklahoma . . . postpone all elective surgeries, minor medical
preventing “(1) close interpersonal contact [in order to slow the rate of spread of the virus],
(2) depletion of medical PPE [personal protective equipment], and (3) activities that will
increase the use of hospital beds, staff, and other resources.” Defs.’ Resp. at 26-27; see
Order and Press Release would require at least some pregnant persons in Oklahoma who
would be eligible for a medication abortion to instead obtain a more invasive surgical
abortion. Pls.’ Mot. Ex. 4, Schivone Decl. ¶¶ 31-32 (Doc. No. 16-4). Further, this
Oklahoma who are presently able to obtain a medication abortion, but for whom the
Order and Press Release would effectively eliminate the ability of persons in Oklahoma
who would reach their last eligible date under Oklahoma law—specifically, the date when
“the probable postfertilization age of the woman’s unborn child is twenty (20) or more
weeks,” Okla. Stat. tit. 63, § 1-745.5(A)—prior to April 30, 2020, to obtain an abortion.
10. While the parties dispute the amount of interpersonal contact and PPE required
6
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 7 of 14
hospitalization resulting from that procedure, in each instance it is less than what is required
II.
Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 269 F.3d 1149, 1154 (10th Cir.
2001) (citation omitted). These four requirements apply equally to a request for a
temporary restraining order (or “TRO”). See Wiechmann v. Ritter, 44 F. App’x 346, 347
(10th Cir. 2002); United States v. Terry, No. CIV-19-250-SLP, 2019 WL 7753271, at *1
The Court has considered the potential for success of Plaintiff’s claims under both
Jacobson’s standard for permissible state action during a public health emergency and
4
Defendants contend that Plaintiffs must “satisfy a heightened standard” because they are
seeking relief that is “disfavored” due to “afford[ing] [Plaintiffs] all the relief that [they]
could recover at the conclusion of a full trial on the merits.” Fish v. Kobach, 840 F.3d 710,
723-24 (10th Cir. 2016) (internal quotation marks omitted); see Defs.’ Resp. at 22. Even
assuming the heightened standard applies, Plaintiffs meet that standard for the reasons
outlined below.
7
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 8 of 14
With respect to surgical abortion, the effect of the Executive Order and Press
probable postfertilization age of the woman’s unborn child is twenty (20) or more weeks.”
Okla. Stat. tit. 63, § 1-745.5(A). Thus, a woman for whom the probable postfertilization
age of her unborn child was 11 weeks on March 24, 2020, would remain able to obtain a
surgical abortion on April 30, 2020. Giving deference to the state executive as the primary
arbiter of what steps are necessary in that area to stop the spread of COVID-19, and to
ration resources needed to treat patients infected with that virus, the Court concludes that
this type of temporary delay is a permissible use of state power in a health emergency.
Further, upon “consider[ing] the burdens a law imposes on abortion access together with
the benefits those laws confer,” Hellerstedt, 136 S. Ct. at 2309, the Court concludes that
5
Three other federal district courts have found that such a previability ban on abortion
premised upon COVID-19 concerns is inconsistent with Supreme Court precedent,
including Casey, and that abortion providers have a substantial likelihood of success on
their claim that such an executive order is unlawful. See Robinson v. Marshall, No.
2:19cv365-MHT, 2020 WL 1520243, at *2 (M.D. Ala. Mar. 30, 2020), appeal dismissed,
No. 20-11270 (11th Cir. Apr. 4, 2020); Preterm-Cleveland v. Att’y Gen. of Ohio, No. 1:19-
cv-00360 (S.D. Ohio Mar. 30, 2020), stay denied and appeal dismissed, No. 20-3365 (6th
Cir. Apr. 6, 2020); Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY,
2020 WL 1502102, at *2 (W.D. Tex. Mar. 30, 2020), temporary stay entered, No. 20-
50264 (5th Cir. Mar. 31, 2020).
8
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 9 of 14
the benefit of emergency action during this great public health crisis justifies such a
In other instances, however, the effect of the Executive Order and Press Release is
the April 3, 2020 hearing, a woman for whom the probable postfertilization age of her
unborn child was 16 weeks on March 24, 2020, would, on April 30, 2020, lie beyond the
20-week limit of title 63, section 1-745.5(A), and at that point would not be able to obtain
an abortion in the State of Oklahoma at all. This effective denial of the Fourteenth
Amendment right to abortion access represents the type of “plain, palpable invasion of
rights” identified in Jacobson as beyond the reach of even the considerable powers allotted
to a state in a public health emergency. Jacobson, 197 U.S. at 31. As such, the Executive
6
In making this determination, the Court accepts and assumes that the holdings in Casey
and its progeny would require consideration of the state’s interest of protection of public
health from a pandemic—rather than the more typical considerations of the state’s interests
in protecting the mother’s and unborn child’s health—as part of the analysis of the
respective burdens and benefits of a restriction on abortion. Absent this assumption, it is
even more plain that Plaintiffs are likely to succeed on the merits. The Supreme Court in
Casey explained that “a statute which, while furthering . . . [a] valid state interest, has the
effect of placing a substantial obstacle in the path of a woman’s choice,” is invalid. Casey,
505 U.S. at 877. Further, though the state “may enact regulations to further the health or
safety of a woman seeking an abortion,” the state may not impose “[u]necessary health
regulations that have the purpose or effect of presenting a substantial obstacle to a woman
seeking an abortion.” Id. at 878. If Casey is read to speak to any exercise of state interest,
including emergency action to avert a public health crisis, it would be clear that restrictions
on abortion services of the kind reflected in the Executive Order and Press Release
constitute a substantial obstacle to abortion access and, therefore, are invalid. So held the
U.S. District Court for the Western District of Texas. See Planned Parenthood Ctr. for
Choice, 2020 WL 1502102, at *3 (“This court will not speculate on whether the Supreme
Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on
the issue. Only the Supreme Court may restrict the breadth of its rulings. The court will
not predict what the Supreme Court will do if this case reaches that Court.”).
9
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 10 of 14
Order and Press Release are, in this respect, invalid as an “unreasonable,” “arbitrary,” and
“oppressive” use of the State’s emergency powers and as an “undue burden” on the
substantially likely that Plaintiffs will establish that the prohibition reflected in the Executive
Order and Press Release is invalid as an “unreasonable,” “arbitrary,” and “oppressive” use
of the State’s emergency powers and as an “undue burden” on the right of Plaintiffs’
patients to access abortion services. The evidence reflects that this procedure is safer and
requires less interpersonal contact and PPE than surgical abortion. As a result, upon
concluding as set forth above that some amount of surgical abortions must be allowed, it
follows that the purpose and benefit that Defendants state they are trying to achieve through
the Executive Order and Press Release—preventing “(1) close interpersonal contact, (2)
depletion of medical PPE, and (3) activities that will increase the use of hospital beds, staff,
and other resources,” Defs.’ Resp. at 26-27—are not advanced by prohibiting medication
abortion. As an example, delay of medication abortion for a woman with an unborn child
nearing nine weeks postfertilization (the latest date when Plaintiff medical providers will
administer drugs for a medication abortion) will limit that person’s ability to access abortion
within the State of Oklahoma to the surgical option, a procedure that will divert more medical
resources than medication abortion.7 And, while administration of medication abortion will
7
For such a woman, if surgical abortion is contraindicated the delay occasioned by the
Executive Order and Press Release would constitute a complete denial of access to abortion
services.
10
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 11 of 14
require some amount of close interpersonal contact, that amount will be small and not
dissimilar from the close interpersonal contact the State has allowed in other contexts. This
disconnect between the means employed and the benefits achieved indicates that the
prohibition on medication abortion is improper under both the Jacobson and Casey standards
of review. See Jacobson, 197 U.S. at 31 (explaining that police power is improperly used
when “the means prescribed by the state . . . has no real or substantial relation to the
of their claim that the Executive Order, as applied to abortion services by the Press Release,
exercising their right to abortion access. See Free the Nipple-Fort Collins v. City of Fort
8
The Court notes that the U.S. District Court for the Middle District of Alabama, which
granted a TRO preventing enforcement of a similar executive order, has now issued an
Opinion and Order stating that it would elect to revise its previous ruling, based upon the
state’s clarification that the challenged executive order “allows providers, exercising their
reasonable medical judgment, to protect the right to terminate a pregnancy and the safety
of their patients” by allowing abortions to “be performed without delay” on a case-by-case
basis if the provider determines that “a patient will lose her right to lawfully seek an
abortion in Alabama based on the . . . mandatory delays” or if the abortion cannot be
delayed beyond the expiration of the executive order “in a healthy way.” Robinson, Op. &
Order of Apr. 3, 2020, at 11-13 (Doc. No. 65-1); see also id. at 11 (noting that the clarified
TRO “recognizes that abortion providers and their patients” “must adapt to the exigent
circumstances caused by the global pandemic”). The Executive Order and Press Release
at issue here contain no exception for delay-based harm.
11
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 12 of 14
Collins, 916 F.3d 792, 805 (10th Cir. 2019) (“Most courts consider the infringement of a
constitutional right enough and require no further showing of irreparable injury.”); Pls.’
Mot. at 30-32; id. Ex. 4, Schivone Decl. ¶¶ 28-33, 37. Further, “[a] plaintiff suffers
irreparable injury when the court would be unable to grant an effective monetary remedy
after a full trial because such damages would be inadequate or difficult to ascertain.”
Dominion Video Satellite, 269 F.3d at 1156; cf. Planned Parenthood of Kan. & Mid-Mo.
v. Andersen, 882 F.3d 1205, 1236 (10th Cir. 2018) (“A disruption or denial of these
patients’ health care cannot be undone after a trial on the merits.” (internal quotation marks
omitted)).
Given the nature of the State’s interest in issuing the Executive Order and Press
Release, namely the protection of public health, the final two considerations for a temporary
restraining order are merged. As detailed above, Plaintiffs have demonstrated that the injury
that will be suffered as a result of delaying abortion access to a woman with an unborn child
Amendment right to access abortion. That plain and palpable deprivation of a fundamental
right outweighs the injury the public may suffer if those procedures are allowed to occur.
Further, as detailed above, Plaintiffs have demonstrated that the benefit to the public
assumed that some surgical abortions must be allowed and the denial of all medication
abortions will result in an increase in surgical abortions. That benefit is outweighed by the
12
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 13 of 14
harm that will be suffered from the intrusion upon Fourteenth Amendment rights caused
CONCLUSION
Preliminary Injunction (Doc. No. 16) seeks a temporary restraining order, the Motion is
GRANTED IN PART. To the extent the Motion seeks a preliminary injunction, it is HELD
IN ABEYANCE.
attorneys, successors, and all others acting in concert or participating with them are
Amended Executive Order No. 2020-07 of April 1, 2020, and the March 27, 2020 Press
Release against Oklahoma abortion providers, clinics, and their staff, to the following
extent:
1. The prohibition on surgical abortions may not be enforced with respect to any
patient who will lose her right to lawfully obtain an abortion in Oklahoma on or
This Temporary Restraining Order is effective upon entry and shall expire on April
20, 2020, at 11:59 p.m., unless extended by the Court for good cause shown or by
It is further ordered that the security requirement of Federal Rule of Civil Procedure
65(c) is waived.
13
Case 5:20-cv-00277-G Document 70 Filed 04/06/20 Page 14 of 14
14